Recent employment-related legislation. (State Regulations Update)

As we have reported in previous issues of Employment Relations Today, state legislatures have become increasingly active in the area of regulation of employment matters, and they continue to focus on child and spousal support issues, employment of minors, whistleblower protection, access to personnel files, and preemployment inquiries. In addition, legislatures have begun to address issues such as health insurance and discrimination against disabled individuals.

This heightened activity on the state level continues to shift the emphasis in the employment arena from employment at will to individual rights. This article discusses some of the trends that are developing with respect to various employment issues.

PREEMPLOYMENT INQUIRY

State legislation varies on the permissibility of various forms of applicant screening devices. For example, in Wisconsin, an employer may no longer require employees or applicants to submit to lie detector tests. Also, a common form of background check is to seek references from former employers. However, due to the increasing number of defamation actions that have arisen in this context, many employers are now refusing to divulge any information other than confirming past employment and the dates of that employment. Colorado now provides that an employer that provides "fair and unbiased information" about current or former employees is presumed to be acting in good faith and is immune from civil liability. The presumption of good faith may be rebutted by evidence that the information was false, misleading, malicious, or violative of an employee's civil rights. In addition, if an employer gives written information to a prospective employer, that information must also be provided to the affected employee at his or her last known address.

In the public sector, states are showing an increasing trend toward mandatory criminal records disclosures. Virginia requires criminal records information to be disclosed to public-sector child day care and adult care centers. Staff members of the Hawaii Department of Public Safety must consent to a criminal background check and submit fingerprints prior to employment. Noncertificated employees in Colorado public schools must also provide fingerprints.

States are adopting divergent approaches regarding who should assume the costs for background checks. Utah schools may require applicants to pay the costs of a criminal background check in certain circumstances. In contrast, Louisiana imposes a penalty for requiring employees to pay for fingerprinting, medical …